Arpi Koulajian, Appellant,v.Tamara Smith, et al., Respondents.BriefN.Y.March 22, 2013THE LA'W OFFICE OF ROBERI F 9()t) MERCHANTS CONCOUIì.SE SUITE 314 '\)IESTBURY,NEWYOIIK 11590 CHI{ISTINE COSCIA I\OBERI E DANZI February 27,2013 New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Attn: Andrew Klein, Clerk of the Court Re Koulajian v. Smith, et al APL-20L3-00019 Dear Mr. Klein, We write on behalf of plaintiff-appellant, Arpi Koulajian, pursuant to letter directive of this Court dated February 7 ,2013 in the above-noted matter. As discussed below, the Decision and Order of the Appellate Division, First Department, dated and entered December 13,2012, should be reversed and the complaint reinstated because the two member dissenting justices correctly stated the law to apply, and as amattq of law, contrary to the record, the majority panel incorrectly held the dissenting opinion moot. The majority was not free to disregard the sworn testimony of defendant Austin on personal knowledge, so as to moot the dissenters' view regarding the potential liability of a parent for negligent entrustment. A copy of the Appellate Couft's December 13,2012 Decision and OF COUNSEL: JOAN FERRETTI AI)MIT fEI) IN NY & DC FACSIMILE: (5 1 6)228-6569 TELEPHONE: (5 1 6)228- 4226 EMAIL: OFFICE(@ÌIANZILA\ü COM Order, in which two justices dissented in a well- reasoned written opinion, is annexed hereto as Exhibit A. Since the majority panel had no comment on the dissenting opinion other than that it was moot, the dissenting opinion presumptively stated the law the majority would have properly applied had it not erroneously concluded that the dissenters' opinion was moot. Preliminary Statement In this case, which involves serious injuries caused by the plaintiff being struck from behind and knocked over by defendants' wheeled suitcase on a New York City sidewalk, the majority opinion overlooked the indisputable fact that either an adult defendant or their infant daughter was handling the suitcase at the time it injured the plaintiff. The plaintiff argued that an adult defendant had to have been handling the suitcase based on circumstantial evidence, but defendant Austin testified on personal knowledge that his two year-old infant daughter was handling the suitcase at the time it injured plaintiff. Even had the majority properly rejected plaintiff s reasonable theory that one of the adult defendants (parents) had to have been in control of their suitcase due to the age of the child (2) and the size of the suitcase (as large as the child), the Court was required to take into account that the only other alternative is that the child was handling the suitcase when it injured the plaintiff, as testified to by defendant Austin (the 2 infant's father). Austin testified unequivocally that the child was handling the suitcase at the time of the injury Defendants should not be allowed to move for summary judgment on the grounds that plaintiff was hit from behind and cannot prove an adult was handling the suitcase, while at the same time not being held to the legal impact of his own testimony that their child was handling the suitcase. In short, the defense cannot have it both ways. The Court below clearly erred as a matter of law in finding the dissenting opinion moot. The December 13,2012 Decision and Order below must be reversed and the complaint must be reinstated. Ouestions Presented 1. Whether the two dissenting justices correctly found that as a matter of law, the issue of whether a large-wheeled suitcase wielded by a two year-old infant on a crowded New York City sidewalk is a dangerous instrumentality which could subject the parents to liability for negligent entrustment or supervision, is a question of fact not susceptible to summary judgment? Answer: The two justice dissent correctly found that under prevailing black letter law as contained in the PJI, "whether the parent 'fail[ed] to use reasonable care in entrusting to...the child an instrument which, in view of the nature of the instrument, the age, intelligence, and disposition of the child and (his, her) prior experience with such an instrument,' constitutes an unreasonable risk of harm to J others" raises a triable question of fact not susceptive of summary judgment. 2. Whether the three-member majority clearly erred as a matter of law in upholding the grant of summary judgment for defendants and the dismissal of the complaint when, the record being clear that either defendant Austin or, as he testified, his infant daughter, was handling the suitcase at the time it seriously injured plaintiff, questions of fact regarding defendant Austin's negligence and/or defendants' negligence in entrusting the suitcase to the infant precluded summary judgment? Answer: Since it is clear on this record that either the parent or the child had to have been handling the suitcase, fact questions about the parent's own negligence and the parent's negligent entrustment of the suitcase to the child precluded summary judgment as a matter of law. 3. Whether defendant Austin's testimony that the infant was controlling the suitcase at the time it injured the plaintiff precluded the majority from finding the dissenting opinion moot as a matter of law? Answer: Since defendant Austin testified that the child was handling the suitcase at the time of injury, the dissenting opinion, which turned on the assumption that the child was handling the suitcase atthat time, could not be moot. 4 Background This action arises from serious injuries suffered by plaintiff, then a 66 year- old woman, who was struck from behind by a wheeled suitcase and knocked to the ground. Ms. Koulajian suffered comminuted impacted fracture of the distal radial metaphysis extending to the radial ulnar and radiocarpaljoints of the right wrist, comminuted impacted fracture of the distal right ulnar metaphysis extending to the ulnar styloid, transverse fracture of the distal radial metaphysis with volar and inferior displacement of the distal fracture fragment, diffuse swelling of the right wrist with limitation and complete restriction of motion, and swelling of her right hand together with inability to use the fingers and her hand in a normal manner. She was hospitalized, endured open reduction with internal fixation of the right distal radius facture, including implant of a Synthes 5-hole distal radius plate with 2.0 recon plates of radial styloid. She underwent physical therapy and has scarring. R. 30-33. Since Ms. Koul ajian was struck from behind, she did not see who was handling the suitcase at the time of impact. R. 82-83. However, discovery revealed that the suitcase was owned by defendants, who were walking with the suitcase and their two year-old infant child in the vicinity of 78th andTgth Street on York Avenue in New York City. This is uncontroverted. R.222. The child was the same size as the suitcase (with the handle not extended) and weighed less than 5 30 pounds; the suitcase had the dimensions of 2.5 feet by 1 foot by 1 foot (with the handle not extended). R. 167, 206. Defendant Austin testified that the child - a toddler - had not yet transitioned to wearing flip flops, so was wearing either shoes or sneakers when she was handling the suitcase with her left hand, while he held her right hand. R. 204, 214. He further testified that his infant daughter was walking behind him the distance of his full arm's length plus her full arm's length with the suitcase handle fully extended in the infant's other hand with the suitcase behind her. R. 208,21,3-215 Plaintiff notes that defendants' motion was not supported by cognizable evidence in that there was no supporting affidavit by anyone with personal knowledge, and no attested deposition transcripts of anyone with actual knowledge was submitted in support of the motion. Compare,R. 120,229. Plaintiff also contended that Mr. Austin's testimony was not credible, due to the relationship between the size and weight of the child and suitcase, and the force of the impact, all of which mitigated against an inference that a tiny infant could have been handling the suitcase at the time of injury. 8.g., Appellant's Brief and R. 247-249,253-255. These factors, including the fact that the suitcase had to have been propelled in front of its handler or to the side of its handler in order to 6 hit the plaintiff from behind, supported a reasonable inference that an adult, not a tiny infant, had to have been in control of the suitcase.l Conversely, defendant Austin insisted that the child was in control of the suitcase at the time of injury. R. 215 (Exhibit B).' Ijnder either scenario, plaintiffls case should have gone to the jury, since, as a matter of law, the defendant's direct negligence in handling the suitcase, or, in the altemative, the parents' negligence in entrusting the suitcase to the child, both raise triable questions of fact under the circumstances of this case. More importantly, defendant Austin's testimony that the infant was handling the suitcase at the time of injury conclusively shows that the dissenting opinion is not moot. Standing alone, his testimony raised justiciable fact questions involving negligent entrustment and supervision, as articulated by the two dissenting justices' His testimony requires reversal since, as a matter of law on this record, the dissenting opinion was clearly not moot. t The luw does not impose on plaintiff a burden of supplying eyewitness proof; a jury is entitled to draw reasonable inferences from these disputed facts. Consalvo v. Grosso,35 A.D.2d791, 315N.Y.S.2dlg5 (1'tDept. 1970);Pollackv. Rapidlndus. PlasticsCo., Inc.,ll3 A.D'2d520, 497 N.Y.S.2d 4s (2d Dept. 1985). 2 The infant's mother testifîed that she did not see the accident occur. R. 151-152, 158. There are no known eyewitnesses. 1 's testimon which that the diss tmo requires reversal It is black letter law that a moving party is held to his own testimony and cannot impeach himself. See e.g.,Richardson on Evidence, 10'h Ed. $ 508; and Becker v. Koch,10 N.E. 701 (1887). Here, defendant Austin's sworn testimony that the child was pulling the suitcase at the time of injury binds defendants for purposes of this motion. See also, Respondents' Brief. Since defendant himself contended that the child was handling the suitcase at the time of injury, the entire controlling body of law of negligent entrustment and supervision articulated by the two dissenting justices in Judge Saxe's well-reasoned dissenting opinion came into play I disagree with the motion court's implicit conclusion that entrusting a two year old with a medium-sized wheeled suitcase on a Manhattan sidewalk does not, as a matter of law, creafe a dangerous instrumentality. Although plaintiff challenged the order on appeal with the contention that it was not alleging negligence supervision, and that an issue of fact was presented as to who was actually handling the suitcase, I would deny dismissal, finding an issue of fact as to whether defendant parents breached their duty to third parties by creating an unreasonable risk of harm to others when they placed a wheeled suitcase under the control of their two year old on a public sidewalk. Dissenting opinion at *2. Having found unpersuasive plaintiff s theory that the parent was handling the suitcase, it was then incumbent on the Court majority to consider the impact on 8 defendant's potential liability of defendant's own testimony that the child was handling the suitcase. That testimony, standing alone, precluded summary judgment, since it is well-settled law that the facts and circumstances surrounding a parent's liability for negligent supervision and entrustment require a trial and preclude summary judgment, since they are, of necessity, susceptive of varying reasonable inferences under the facts of each case. It is not that the parents here provided their child with an object that by its nature constitutes a dangerous instrument. Of course, a wheeled suitcase is not normally a dangerous instrument. But the critical inquiry does not focus solely on the instrumentality itself. It asks whether the parent "fail[ed] to use reasonable care in entrusting to...the child an instrument which, in view of the nature of the instrument, the age, intelligence, and disposition of the child and (his, her) prior experience with such an instrument," creates an unreasonable risk of harm to others (PJI 2:260 femphasis added]). However innocuous a wheeled suitcase might seem generally when handled by adults or larger and older children, when it is the same size as the two-year-old child wielding it, the potential hazards it could create may waTrant imposing on the parent supervising the child a greater degree of care and supervision, to ensure that the object does not unwittingly turn into a hazardous object that may foreseeably cause harm to nearby pedestrians. Such an object, in the hands of a possibly heedless two year old wielding it without parental oversight on a Manhattan sidewalk, could turn into a hazard, creating "an unreasonable risk of harm to others" (id.). 9 Dissenting opinion at*4 (citations, parentheticals and emphasis in original). In holding the dissenting opinion moot, the Appellate Court completely overlooked or ignored Mr. Austin's testimony which binds defendants on this motion and precluded summary judgment in favor of defendant. The dissenting justices correctly noted: The majority holds that there is no viable claim against defendants, as there is no evidence supporting plaintiffls theory that one of the defendants handled the suitcase. I disagree with that broad holding, and submit that the evidence showing that defendants' child was handling the suitcase at the time of the accident may warrant holding the parents liable if they entrusted their child with an object that, under those particular circumstances, created an unreasonable risk of harm to others. Dissenting opinion at*2. See also,R.248-249; Appellant's Brief at2l-22. This Court must reverse and reinstate the Complaint. asonable inference tha was the suitc luded ìudgment for defendants Defendant Austin's testimony was, by its very nature, self-serving and subject to reasonable inferences against credibility. 8.g., Richardson on Evidence, 10'h Edition $$ 356-357 : PJI I :91. Since the circumstances here tended to show that the child was not physically capable of handling the suitcase because of her small size when compared to the size of the suitcase, summary judgment was improper. Plaintiff was entitled to have a jury assess Mr. Austin's credibility, view the suitcase, and hear plaintiff s rendition regarding the circumstances. These are common sense inferences, within the ken of a lay ju.y. 8.g., Kulak v. Nationwide 10 Mutual Ins. Co., 40 N.Y.2d 140,351 N.E.2d735 (1976); Velazquez v. New Yorh City Health and Hospitals Corp., 65 A.D.3d 931, 886 N.Y.S.2d 129 (lst Dept. 2009); and Reardon v. Presbyterían Hospital in City of New York,292 A.D.zd235, N.Y.S.2d 65 (1st Dept. 2002). Yet in its ruling, the Court below impermissibly imposed a heightened burden of proof on plaintiff, which improperly put plaintiff in an impossible situation since plaintiff was struck from behind. Under that Court's ruling, no one who is struck from behind could ever recover for her serious injuries if her theory of the case is disputed by the defendant. Plaintiff shoul d not be limited to the Rule 500.11 alternative procedure In this case, the issue of whether the dissenting opinion and the issues contained within it are moot was not briefed by either party in the Court below. Compare. Appellant's Brief and Respondents' Brief, submitted herewith. Yet, the Appellate court sua sponte concluded that the dissenting opinion was moot, and did not articulate how that opinion could be moot given defendant Austin's own testimony that the child was handling the suitcase at the time of injury. Absent the parties having addressed this issue in their briefs, there is little insight this Court can glean on this issue from the briefing in the Court below. For this reason, plaintiff respectfully requests that in the event this Court is not inclined to agree with plaintiff on the strength of this letter brief, that plaintiff be afforded a full opportunity to brief the issues in this case unconstrained by the alternative 11 procedure, Rule 500.11 Conclusion Questions of fact and credibility precluded summary judgment in favor of defendants on all issues. The Court below made factual inferences against plaintiff s initial theory of the case, yet at the same time, failed to hold defendants to the legal consequences of defendant Austin's own testimony that the child was handling the suitcase at the time of injury. In so doing, the Court below incorrectly upheld the dismissal of the complaint on the basis that the dissenting opinion was moot. The two dissenting justices, properly considering Mr. Austin's sworn testimony that the child was holding the suitcase at the time of injury, would have denied summary judgment for defendants, opining that it is for the trier of fact to determine if a wheeled suitcase in the hands of a two-year old on a crowded New York City sidewalk is a dangerous instrumentality This Court should reverse, hold that the dissenting opinion is not moot, adopt the conclusions set forth in the dissenting opinion, and opine that as a matter of law, it is a question of fact not susceptive of summary judgment whether a wheeled instrument in the hands of a two year-old on a crowded city sidewalk is a dangerous instrument. As aptly put by the dissenting justices, the facts and circumstances here clearly precluded summary judgment I2 The m4iority holds that there is no viable claim against defendants, as there is no evidence supporting plaintiffs theory that one of the [adult] defendants handled thc suitcase. I disagree with that broad holding, and submit that the evidence showing that defendants' child was handling the suitcase at the time of the accident may warrant holding the parents liable if they entrusted their child with an object that, under those particular circumstances, created an unreasonable risk of harm to others. Dissenting opinion at *2. Plaintiff respectfully requests this Court to reverse, rein.state the complaint and remand for trial and other proceedings consistent with its opinion. Thank you for your courtesY. Respectfully submitted, -7"&#Robert F. Danzi Enc. çc DeSena and Sweeney, LLP (with enclosures) l3 EXHIBIT C(A)) Tom, J 8137 MazzareLLí, Saxe, Catterson, Arpi Koulajian' Plainti ff-APPeIIant, -against- Tamara Smith, et al. , De f endant s -Re sPondent s Frederic Lewis, New York, for appellant DeGrasse' JJ. Index 100673/10 P DeSena & counsef), SweeneY, LLP' HauPPauge for resPondents. (Shawn P. O'shaughnessY of OrderrsupremeCourt,NewYorkCounty(Mil-tonA'Tingling' J.),enteredApril4|201-IIwhichgrantedd.efendanLs'motíonfor Surunaryjudgmentdismissingthecomplaínt,affirmed,\^Iithout costs. Contrary to plaintiff's contention' there is no evidence in therecordLosupporthertheorythateitherofdefendanLswas pulling the suitcase that plaintiff tripped over' Although defendants assert that the child was in control of the suitcase' plaintiff insists that the chird was not. Accordingry, she courd not prove a claim for negligent supervision' as such a cause of action is dependent on an atlegation that a chil-d improvidently used or operaÈed a dangerous instrument (see Rios v Smith' 95 NY2d.64'7,652-653t20011)'Inlight'ofthis'thedÍssent's argument concerning whether the suit'case was a dangerous insLrument is whoIlY academic' We have considered plaintiff's remaining contentions and find them unavailing' AIf concur dissent in follows: excePt Tom, J.P a memorandum bY and Saxe, J. who Saxe, J. as SAXE, J. (dissenting) Iagreewiththemajoritythatplaint'iffhasnotpresented any evidence from which it could be found that one of the defendant parents, rather than their two year old/ \^Ias handling Lhe suitcase Lhat. caused plainLiff's fatl- ' However, I disagree with the dismissal of the claim of negligence against the parents. In parLicular, I disagree with the motion court's implicit conclusion t,haL entrusting a two year old wit'h a medium_ sized wheeled suitcase on a Manhattan sidewalk does not' as a maLter of law, create a dangerous insLrumencality. Although plaintiff challenged the order on appeal with the conLenLion that it was not alleging negligent supervision, and that an issue of facL was presented as to who was actually handling the suitcase, I would deny dismissaf, finding an issue of fact as Lo whether defendant parents breached their duty to third parties by creating an unreasonable risk of harm Lo others when they placed awheeledsuit,caseunderthecontroloftheirtwoyearoldona public sidewalk. P]-aintiffallegesthatataroundnoononsaturday,october 3, 2009, she was walking on the sidewalk of York Avenue beLween TBth Street and 79th street in Manhattan when she was sLruck from behind,andcausedtofall,bywhatturnedouttobeawheeled suitcase that hit her in the back of her teg. Plaintiff did not' see the suitcase until after she feII' and she did not know who had been handling it' According to defend'ants' deposition testimony,theirti^royearoldchitdhadbeenpuJ-Iingthesuitcase atthetimeoftheincidentlalthoughneitherparentsawhowit occurred. The chifd's father' David Austin' had been walking in front of t.he child, holding her right hand with his reft hand' while she pulled the suitcase behind her' with its handle ful}y extended. The chitd's mother was behind them' but by the time she turned the corner onLo York Avenue from 78th Street' plaintiff was already falling' and the suítcase was on the ground, no longer held bY anyone' Defendants' sumlnary judgment motion was based on Lhe assertionthatitwastheirchildwhowaspullingthesuilcase' and that the chitd herself' being two years old' could' not be found negligent (see Verní v Johnson' 295 NY 436' 438 [19461)' while a parent cannot be held liable for lack of supervisíon of a child unless the accident was clearly foreseeable from the child,simprovidentuseoroperationofadangerousinstrument Lhat was subject to the parent's control (see Rjos v Smith' 95 NY2d647,652_653t2001]).TheyassertedthatasuiLcasecannoL be a dangerous instrument ' Plaintiff countered that there was a question of fact as to who was pulting (or pushing) the suitcase at the time she was slruck' but that it would have been impossible for a child the size of defendanLs' daughter -- who was no taller than the suitcase itself, and weighed ress than 30 pounds -- to handfe iL' The majority holds that there is no viable cl-aim against defendants, as there ís no evidence support'ing plaintiff's theory thatoneofthedefendantshandledthesuitcase.Idisagreewith that broad holding' and submit' that the evidence showing that defendants'childwashandlingl-hesuitcaseatthetimeoft-he accidentmaywarrantholdingt.heparentsliableiftheyentrusLed Lheir chitd wit.h an object LhaL, under those parLicular circumstances'createdanunreasonableriskofharmtooLhers' In Nolec hek v Gesuafe (46 NY2d 332 I197Bl ) and Rjos v Smith (95 NY2d 647 t20011 ), the Court of Appeals upheld negligence claims against parents who provided their minor children with motorized vehicres when t.hey were aware that others woufd be endangered by their use ' The defendant father in NoJechek had given a motorcycle to his l6-year-old son who was blind in one eye and had impaired vision in the other (46 NY2d at 337) ' and in doing so may have breached his "duty to protect third parties fromtheforeseeableharmthatresulLsfromthechildren's improvid'entuseofdangerousinstrumenLs,totheextentthatsuch use is subject to parental- control" (id' at 340) ' In Rjos' the 17-year-old plaintiff was injured when ridíng as a passenger on an ATV supplied Lo the 16-year-old driver by his friend' the defendant's son (95 NY2d at 650) ' The Court hel-d that' the evidence was suffícient to support a fact issue as to whether the fatherhad..createdanunreasonableriskofharmtoplaintiffby negligentl-y entrusting the ATVs to his son" (jd' at 653) ' While those cases concerned instrumentatities Lhat are generally agreed' t-o be dangerous' the Iaw does noL fimit the possibi lity of parental liability to instrumentalities which by their nature alone are dangerous ' Importantly,thePJldoesnotframetheissueofnegligent entrustment of an instrumentaliLy to a chird in terms of ..dang.erous inst.ruments. " Rather, PJT 2:260 staLes' "Aparentisnot'responsiblefortheactsof(his'her) child, nut is tt"pottsibl-e for the failure to use reasonable care in entrusting to or leavinq in the possession of the chíld an instrument which' in view of the nature of the insttument' the age' intelligencel and disposition of the chiTd and (his' her) ptiot experience with such an instrument' constitutes an unreasonable risk of harm Lo others" (emphasis added) ' TheComment-tothisinstructionfurtherexplainsthatitisnot the instrument alone that estabtishes the danger: "The Lort consists of enlrustíng or permitting t'he use of an ínstrument made dangeroüs by the age, inteTJigenceI infirmity, disposition or training of the user which causes injury to a third party" (18 NYP.JI3d2:260at.723|20:*2]lemphasisadded]).AstheRjos court explained, "Iw]hether a part-icular object qualifies as a dangerous instrument depends on the nature of the instrument and t,he facts pertaining. Lo its use, incJ-uding the particul-ar attributes of the minor using or operating the item" (95 NY2d at 653, citing 45 NY Jur 2d, Domestic Relations s 534, Craft v Mid Is. Dept. Stores, 1L2 ADzd' 969, 910 [2d' Dept 1985]' and 'Alessi v ,Al.essj, l-03 AD2d L023, 7024 [4th Dept 1984] ) ' There is no queslion that "items that are commonly used by children,ofsuitab}eageinamannerconsistentwiththeir intended use, may noL, as a matter of law, be classified as dangerous instrumenLs" (Rios, 95 NY&2d at 653, citing Sorto v FLores, 24L ADzd' 446t 44:7 [2d Dept f 997] , Barocas v F't¡l' woofworth co., 201 AD2d, I45, LLB [1-st Dept 1995], and SantaJucia vCountyofBroome,20SAD2ð'969,970_971t3dDept1.9941,fv dismjssed84NY2d923i1994]).However,thecasesinwhich cl-aíms of negtigent entrustment have been dismissed aIl concern playthings or items associated with child rearing' sorto (24L AD2d 446) concerned the parents' entrustment of a bicycle to a five-and-one-half-year-ofd boy who then col-lided with a three-year-oId gírl, injuring her. The court observed that there was no proof that the bicycle was unsuitabl-e for a boy ofhisage,height,orweight,noranyproofthathelackedthe skills of a boy his age or that. he was riding it írnproperly or in an inappropriate area (id' aL 44't) ' Similarly' in Santafucía (205 AD2d 969), the parents of a five year old provided with a 16-inch bicycle were hefd not liable as a maLter of law Lo a ptaintiff injured by that child' The Court emphasized that r'Ir] iding a bicycle has become' practically speaking' a natural stage of every child's development" (id' aL 970) ' so as long as therewasnoevidencethat'thechildlackedLhebasicskillsto ride it alone, the parents could not be said to have breached their duty to third parties ' And this Court' t-n Barocas (2O1 AD2d 145), held that a parent who gave a pJ-astic dotl to a child' not knowing that it would have a sharp edge when broken' was not liabre/ as a maLLer of raw, for negligent supervision based on a theory of entrusting a chil-d with a dangerous instrumentality' sincetheiteminquestionwasnot.somethingthaLtheparentshad reason to believe unsafe (id' at L48) ' The case of ZatiLfa v Pennachio (90 AD3d 1040 [2d Dept 20111 ) , presents some superficial similarities to the present matter. There, a grandmother was struck by a battery-powered tricycle scooter being ridden by her three-year-old grandson' whom she was then supervising. The grandmother sued the child's mother, contending that she had negrigently entrusted her child withadangerousinstrument.TheSecondDepartmentdismissedthe negligent enLrustment action' stating ¡þ¿l \items that are conmon.Ly used by children, of suitable age in a manner consistent with their intended use, may not, as a matter of law' be classified as dangerous instruments" (jd. aL 1040-1041, quoting Rios, 95 NY2d at 653) . BuL, there is an important dist.inction between zariJ'fa and the present caSe. In Zariffa, the negligent entrusLment claim was based on the assertj-on that Lhe mother had provided her child wiLh a dangerouS instrument, when what she had provided was a toy apparently used gienerally by child'ren of that age' The law that was applied was, therefore, that merely providing the chi].d with a commonly used. riding toy could not be said to' ín and of itself, breach any duty owed Lo third parLies. However, if Lhere had been a showing t.hat other facts or circumstances, of which the defendant mother was aI¡Jare, would have warranted her taking additional measures to prot.ect third parties f rom her chil-d's use of the riding toy, the ruling might have not been the same. For insLance, if , hypotheticalÌy, the mother in zari-zl.a had been present and had the abil-ity or the obligation to observe that the child r{as operating the battery-powered scooter wildJ-y or without conLrof, so aS to endanger passersby, she could have been liable for negligence. But, in ZatiJIa, il- was the plaintiff grandmother who was supervising the child at the time, so Lhe grandmother could make no such claim against the mother' Providing a child with a slandard toy may support a negligenceclaimagainsttheparentwherethereismoretothe cl-aim than merely giving the child a toy to play with' As Lhe court said in,Afessj (103 AD2d 1023), where a six year old ..launched,, a toy airplane and sLruck his four-year-old brother in the eye, "the question of whether the toy airplane is a dangierous instrument is a question of fact to be determined at trial based upon the object/ s size, weight, shape and operating potential-' as well- as the age, intelligence, disposition and prior experience of the infant defendant" (id' at 1023-1024) ' Itisnott'hattheparentshereprovidedtheirchildwithan objectthatbyitsnatureconstit'utesadangerousins.Lrument.of course, a wheeled suitcase is not normally a dangerous instrumenL. But the critical ínquiry does not focus solely on the inst.rumentalit.lr itself. It asks whet.her the parent "failIed] Lo use reasonable care in entrusting to the chíld an insLrument which, in víew of the natute of the instrument, the â9a,intel7ígence/anddispositionofthechiJ.dand(his,her) prior experience with such an instrument"' creaf;es an unreasonable risk of harm to others (PJI 22260 [emphasis added] ) ' However innocuous a wheeled suitcase might seem generally when hand].edbyadultsorlargerandolderchi].dren,whenitisthe same size as the two-year-o]d child wiel-ding it, the potential hazards it coufd creaLe may warrant ímposing on the parent supervising the child a greater degree of care and supervision, to ensure that the object does noL unwíttíngJ-y turn into a hazardous object t.hat may foreseeably cause harm to nearby pedestrians. Such an object, in the hands of a possibly heedless two year old wielding i.t withouL parental oversighl- on a ManhaLtan sidewalk, coul-d turn into a hazard/ creating "an unreasonable risk of harm to others" (id-) - ParenLsf duty to control- theír minor children is expressed in the Restatement (Second) of Torts S 316 as follows: "A parent is under a duty Lo exercise reasonable care so as to control- his minor child as to prevenl it from . so conducting itself as to create an unreasonabl-e risk of bodily harm to them, if the parent (a) knows or has reason to know Lhat he has the ability to conlrol his chiÌd, and (b) knows or should know of the necessity and opportunity for exercising such control." particul_arly applicable here is one of the comments to the section, which explains that " [t] he child may be so young be incapabte of negligence, but this does not absolve the as to parenL from the performance of his duty to exercise reasonabfe care to control the chíld's conduct. Indeed, the very youth of the child is likely to give the parent more effective abiliLy to control its actions and to make it more often necessary to exercise it" (id., Comment c) . The facts as presented in the record on appeal- are sufficienttoPermitthefindingthatdefendantparentsacted negligently by first entrusting a small two year old with a wheered suitcase as big as she was, and then fairing to Lake any steps Lo prevent her from wielding that suitcase in a manner that createdanunreasonableriskofbodilyharmtootherpedestrians sharing the sidewalk wit'h them' In my view' this is sufficient to preclude dismissal of the action' THTS CONSTITUTES THE DECTSION AND ORDER OF THE SUPREME] ðóUN', APPELLATE DIVISION/ FIRST DEPARTMENT. ENTERED: DECEMBBR 13 ' 20L2 CLERK EXHIBIT CCF-)) 215 1 2 3 4 5 6 7 I 9 ,Iay Deitz Àssocíates 2L2-374-'t700 5L6-6',78-O?00 Page 31 Àugust 4, 201"0 Court ReporLing Services 1LB-527-77O0 fax:516-678-4488 L0 11 L2 l-3 l_4 L5 1_6 L7 l_8 L9 20 2T 22 23 24 D. Àust,ln O. How far behind You? A. My arm vras exEended and her arm was exEended, so Ehe lengch of her be the length. A. You menEioned lt' waet arm and my arm would your right? MR. BRUCKNER: Her righE-hand. Which hand lvere you uÉ¡ing? A. I wae usÍng my left-hand Eo hold her ríght-hand O. At thatr time did you have an opport,uniLy t'o observe where t,his suitcaee wae? A. The suÍtcase was in ¡a'e lef t-hand beíng pulled behínd her. A. Do you know what was Locat'ed aE t'he buíJ.ding lÍne pass Ehis pi-zza shop that you descríbed, what store? MR. BRUCKNER: You are asking what the next, busÍness estabLishmenE was? MR. LEWIS: Yes. A. It, was a restaurant. I don'L recalI the name a. Thre nexE business pasE that resLaurant, whaL's the nexL establishment? A. Greek restaurant.25